Miltenberg: “How a Yale Student’s Rape Accusation Exposed Her to a Defamation Lawsuit,” The New York Times

In a 2018 disciplinary hearing at Yale University, Saifullah Khan listened as a woman accused him of raping her after a Halloween party. The woman, who had graduated, gave a statement by teleconference to a university panel, but Mr. Khan and his lawyer were not allowed in the room with the panel. Nor could his lawyer, under the rules of the hearing, cross-examine her. Instead, they were cloistered in a separate room, as her testimony piped in by speakerphone. He felt, he said, “there is absolutely nothing I can do to change my situation.” As he feared, Yale expelled him. Mr. Khan’s criminal trial, months earlier, was markedly different. His lawyer cross-examined the woman in ways that horrified women’s rights advocates: How were you dressed? How much did you drink? Did you send flirty texts? And unlike the Yale hearing, the prosecutors had to prove his guilt “beyond a reasonable doubt.” After barely three hours of deliberations, Mr. Khan was acquitted. The difference between those two hearings — in process and outcome — led Mr. Khan to make an unusual move: He sued his accuser for defamation for statements she had made during the Yale hearing. That lawsuit, filed in 2019, is challenging the way universities across the country have adjudicated such sexual assault hearings … Ultimately, however, the court found that the Yale hearing had procedural shortcomings, including the lack of cross-examination, not placing witnesses under oath and not giving a transcript of the proceeding to Mr. Khan. Andrew Miltenberg, a lawyer who usually represents the accused, said that cross-examination during Title IX hearings is necessary for fairness, because the proceedings are already tilted against the accused. Campus investigators are not always trained in evidentiary procedure. And there is a lower standard of guilt than in criminal proceedings. In the Khan hearing, the bar was set at a “preponderance of evidence” rather than “beyond a reasonable doubt.” Although the accused may submit written questions, that is insufficient, Mr. Miltenberg said, because they are vetted by a hearing committee and are sometimes reworked or not even asked.

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